Road warriors: Keene read between the lines

It was about 9am on June 1, and there were plenty of empty seats in room 241 of the County Office building when farm owner Laura Dollard stepped up to the podium and pleaded with supervisors to just say no.

Thomas Sullivan, the millionaire developer who had asked the board to say yes to this finishing touch to his 3.7-mile road extension, was nowhere in sight.

In the spring of 2004, while the rest of historic Blenheim Road was being paved by this private landowner and it seemed the entire Scottsville hamlet of Keene turned out at county board meetings to voice their opposition, who knew the battle would come down to this– a quarter-mile of dirt road, an umbrella of trees, and a handful of residents.

"I own the piece of road that Mr. Sullivan wants to continue paving, and I do not want it paved," Dollard began. She had been preparing for this day for more than a year, ever since the Virginia Department of Transportation (VDOT)– then the county– granted Sullivan approval to finish a job which, unofficially, was already whizzing along on cruise control in the public right-of-way.

According to transportation consultant Peter Kleeman, who has been an advocate for Sullivan's neighbors, VDOT normally provides a public hearing to residents.

But as recounted in stories the Hook and the Daily Progress, Sullivan began widening and paving last year with little or no notice to neighbors. In one case, his crews actually bulldozed dozens of trees on a neighbor's land.

Blenheim was the route trod by Thomas Jefferson back when Scottsville was the county seat. It's a road hugged by 5,500 bucolic acres now owned by Murcielago, LLC. That is to say, it was Thomas Sullivan's project.

Dollard successfully defended her quiet corner of the route back then, but almost two years after the bulldozers took down thousands of trees, the dust hasn't settled.

Dollard's road is only part of the problem. What critics consider a developer's loophole the land use tax has meant Blenheim residents may not know for some time if the entire area will give way to development– even though Sullivan denies the claim.

On January 12, 2004, the county issued a stop work order on the project because it lacked an erosion control plan; on August 29, 2005, a second was issued. While the first violation was thought to pertain to grading in connection with the road work, the recent violation points at something some neighbors consider more sinister: residential development.

But some Keene residents say the county has known for over a year that development was the ultimate goal, even as officials accepted Sullivan's claim that the bulldozing involved "farming" or "forestry." Development, Dollard fears, is pushing the attempt to smooth every last bump in the road.

Sullivan's spokesperson Kim Atkins says the fear of large-scale development is completely unfounded. "Mr. Sullivan is remaining in the area himself and so is not fond of a lot of new rooftops in the area," she explains.

Atkins refers to Dollard's frontage as "a small stretch which VDOT and local residents had requested to be paved, but that we were not inclined to pursue."

Not inclined to pursue? In mid-May, supervisor Ken Boyd received a letter from Atkins arguing that it wasn't prudent to leave one dirt stretch sandwiched between asphalt. VDOT agreed, Atkins wrote, reminding Boyd that he had met with her and Sullivan "several times" about the original paving plan. The letter urged the board to act quickly "for safety's sake." It was a matter of economics that work crews already on site be allowed to finish by mid-June, wrote Atkins. And she urged the board to act quickly "for safety's sake."

Dollard knew the issue would be discussed during two June meetings, but the notice didn't come from the county. Instead, she was alerted by a friend who works for the county Planning Department. The first meeting would be just a discussion, her friend Marcia Joseph believed, with no decision being made until June 8. So Dollard planned to attend only the second meeting.

But on May 31 she received another call from Joseph, who now suspected that a decision would be made at the next morning.

Dollard felt angry and betrayed.

This was the way thingstypically unfolded last year when Sullivan first tore up the road, and then told supervisors, "I am not a developer"; when VDOT engineer Bryan said, "How can we say no?"; when all but a single board member ignoredthe anti-paving petition signed by 150 Keene residents– as well as the county's five-year plans for the rural areas– and gave their approval.

Dollard was told she would have to summon several other paving opponents to the 9am meeting if she wanted to protect her road. With only 12 hours before the meeting, the former New Yorker-turned-organic farmer began a string of frantic phone calls.

"I could reach only a handful of people to be here at nine this morning, obviously," Dollard chided the board that morning.

Notably absent from the group Dollard had rallied was Peter Mellen, the former leader of the group opposed to the road.

In fact, on April 15 the eloquent spokesman had penned a letter to Thomas Sullivan, describing how happy he was to no longer "drown in other people's dust." And he praised the paved road's "gently curving drive" with its "parkway" feel. Mellen seemed to have switched sides.

Mellen has since apologized to neighbors, explaining that the letter was a private communication never meant to wind up in supervisors' agenda packets. But that's exactly what happened when it was submitted by Atkins as proof that the opposition was over. Residents were "very pleased with the safer passage and the aesthetic appeal of the roadway," the spokesperson argued in a separate letter that accompanied Mellen's.

While Mellen's letter may have been simply a gesture to restore the peace, the land he once refused to sell to Sullivan to widen the road has now been cut into for that purpose. In fact his Mt. Ayre farm has been subdivided and sold to an unknown buyer. In his letter, Mellen, who moved onto the adjoining parcel, credited Sullivan for the good sale.

Of all the changes that have altered Blenheim, landowners have found this– rising property values– the most seductive.

At least one other former road opponent has sold property to Sullivan, while others think twice about placing their land under conservation easement. Neighbor Noelle Ruane says she once eyed the property Mellen recently moved to in hopes of buying and preserving it. It never happened, Ruane says, because she couldn't offer the top dollar of a buyer who had development in mind.

But what if residents had chosen lower property values if it meant they could maintain their peacefully-underdeveloped hamlet?

Why didn't all Blenheim residents have a say about the road, citizen advocate Kleeman argued to the board after Dollard finished her speech. Why were the rules that govern public input again set aside in favor of a private (read wealthy) landowner?

Called to the podium the moment he walked through the door, Kleeman wasted no time reminding supervisors of a current VDOT project– "Places 29"– in which residents were given a public hearing about road work that affected their neighborhood.

"There has been a great deal of public outreach to bring those people to the table," Kleeman told the board– "which is quite different from the Blenheim Road project."

In Virginia, the laws governing rural road "ownership" give that right, known as "prescriptive easement," to property owners. When it comes to expanding VDOT right of way, landowners must give permission, and Dollard will not. If she wanted to live in suburbia, Dollard says, she and her late husband would not have bought a farm in an area zoned "rural."

Along the new Blenheim, Dollard's frontage has become the dusty old wing of a remodeled estate. On either end of that rustic fifteen foot wide gravel path, the road flows smooth and fast and asphalt– a black band connecting Sullivan's historic homes, Mt. Pleasant and Mt. Ida. They're both up for rent.

At 5,500 acres, the combined "Murcielago Farms" has become "the largest private estate in Albemarle County," according to its website.

Besides the sale of parcels, rental options advertised on the site include theme nights, catered dinners, weddings, hot air balloon rides, guided ATV tours– even hovercraft rides and corporate retreats.

UVA architectural historian Edward Lay doesn't think activities like corporate retreats are a bad use of the richly historic homes and property. County zoning administrator Jan Sprinkle, however, says "The rural area zoning district at this time does not allow corporate retreats." A new zoning text amendment that will allow such permits is in the works, though, Sprinkle says, and "Mr. Sullivan may want to apply for the permit."

Supervisor Sally Thomas says the new ordinance arose because the county is seeking ways to help landowners keep their land rural, not subdivided– "and yet income-producing where agricultural uses are believed to be less lucrative than in earlier days."

Atkins insists, though, that Murcielago's main business isn't the rental options or the sale of parcels from the "Farms at Lower Sherwood" and "Farms at Turkey Run," or even the 4,000-acre "planned equestrian plantation" with its tracts ranging from "22 ac. to 400+ acres" previously advertised in the Wall Street Journal.

Murcielago Farms is primarily a working cattle farm, Atkins says.

That claim, coupled with a county land use loophole– the agricultural or forestry exemption– means neighbors may have to wait and see if the area will remain rural.

By claiming one of these exemptions, landowners can pay a fraction of the tax dollars they'd have to pay at market value. All a land speculator has to do to receive the same break as a farmer is graze a few cows or grow some hay while waiting to build.

Land use reform critic Tom Loach estimates that 19 percent of county land receiving huge tax breaks this year belongs to corporate LLCs like Murcielago. When developers turn such "farmland" into subdivisions, they pay back taxes at the higher, market rate– but only for the previous five years.

While the land use tax subsidy has a noble goal of preserving rural areas, it's readily exploited by developers. Loach calls it "a direct transfer of wealth back to the wealthiest, being paid for by low and middle-income taxpayers."

Another advantage to developers under land use includes the potential to skirt erosion and sediment control requirements. All that's required as proof the owner isn't grading for development– if Lower Sherwood is any indication– is their assertion that the work is agriculture or forestry-related.

While a subdivision plan may already be in place, county inspectors who handle the exemptions never see those plans, according to erosion control officer Kenny Thacker. "That's handled by administration," he says.

Developers can also sidestep paying for an engineering plan for a road into the subdivision, according to Alyson Sappington, district manager of the Thomas Jefferson Soil and Water Conservation District.

This can be done by putting in a less-stringent farm or forestry road, and later– when applying for a subdivision– pointing to the "existing road."

The cost of an engineered road into a subdivided lot is about $250,000, according to one Keene resident who considered the option. Multiply that by a number of subdivisions, and the "ag-forestal" savings could be considerable.

Are developers abusing the exemptions?

Regularly enough, admits Thacker.

Sappington is more direct: "This is a loophole statewide in the erosion and sediment control law."

Even in the first stop work order on January 14, 2004, the county indicated that Sullivan was misusing forestry and agricultural exemptions. In an email to county executive Bob Tucker on January 12, 2004, director of engineering Mark Graham stated, "We've determined the activity is not a legitimate forestry operation and is not covered by VDOT permit."

But the bulldozers had a short "stop." Silt fences were soon erected, and the work resumed.

In another email sent to colleagues on February 17, 2005, referencing some or all of the same parcels, Graham acknowledged that the scenario residents feared was taking shape after all– noting the "big sign saying 'Equestrian lots starting in the $180s'" on Blenheim– but retreated from the 2004 claim that the work wasn't forestry-related.

"Do we believe this is a legitimate forestry operation?" wrote Graham. "No. The type of equipment being used and money being spent is not consistent with forestry operations." But then Graham added, "Can we unequivocally prove it is not a forestry operation? No. Nobody says logging has to be done in a certain way or even make economic sense."

"Until the county can prove it's not agriculture, their hands are tied," says Sappington.

That is, what Graham himself called in the email "numerous access roads and areas cleared and graded in a manner consistent with residential development" could lead into hayfields.

"We are assuming we should simply continue to monitor this," he concluded.

The application for a subdivision– which Graham says is the sort of "proof" the county requires before issuing a violation– was already on file, however.

Sullivan's application for a subdivision had been received by the county almost a year earlier, on May 12, 2004.

Llama farm owner Jo Ann McGrath, whose property abuts Sullivan's Lower Sherwood parcels, made her own complaint to the county in February 2005, when she invited inspector Mike Frazier out to investigate the bulldozing of streams next door. McGrath also showed the inspector the tree-cleared areas, which she says once provided natural erosion buffer zones and wildlife shelter.

Frazier told her the landowner was "walking a fine line," and that he would "stay on the situation," according to McGrath.

County records show that Frazier then sent a screening form to Sullivan to clarify the nature of the "land-disturbing activity."

The form returned by Sullivan's wife, Kathleen, claimed there were no streams on the property– a result the McGraths say of the streams having already been filled.

The form also stated that the land disturbance was due to "tree harvesting using an existing farm road."

One month later, county engineer Jack Kelsey faxed a letter to Sullivan apologizing for the delay, but saying that, previously, inspectors had been told that "your intent was to create pasture."

"The intent must be clear in order to determine the specific conditions that would apply to the exemption," he wrote.

On April 1, 2005, Kelsey received a reply from spokesperson Atkins "stating that the tree-harvested land was being converted to a bona fide improved pasture," according to county documents.

A week later, Kelsey approved the work as an "exempt activity," one that "doesn't require the owner to submit erosion and sediment control plans."

It was mid-July when a former employee of the Soil and Water Conservation District saw– and questioned the county about– the work being done along Blenheim.

Inspectors were dispatched and on July 20, Thacker submitted a stop work order to Mark Graham stating that "the department has now received information that the location is being cleared for a building site."

Five weeks later, a stop work order was finally issued on several Lower Sherwood parcels, a process that normally takes days. Thacker says it can take up to three weeks, however, when supervisors aren't in agreement. The exemption code "is a very gray area," Thacker allows.

Atkins downplays the Farms at Lower Sherwood and Farms at Turkey Run subdivisions as only a small part of Murcielago's plans. "Even if all the property on the market were sold," she says, "Mr. Sullivan would still own the largest tract of land in the area."

The revision of Blenheim Road has been a "philanthropic" gesture "toward the community and neighborhood," Atkins says. "The vision we had presented regarding the road and neighborhood has now been realized. It is now being used for bike riders and horseback riding and walking."

But the pillar-gated drives off the "parkway" road and the streaming white fences have also made Dollard's au naturel road, thick with pines and turbulent foliage, seem out of place along Blenheim.

It is, Atkins said in her June letter to the board, "startling" to drivers.

Even VDOT engineer Jim Utterbach told the board at the June 1 meeting that this section of the road has a different feel than the paved portions. "Like a rainforest," he added.

"That's what the whole road used to be," called out one Blenheim paving opponent, followed by an echo of agreement from the others.

It didn't take the board long to reach a decision that morning, this time to say no to Thomas Sullivan.

So for now, at least, whether rooftops rise or cattle roam, Blenheim's dirt flank will remain a stitch in the side of drivers and developers.

But for how long?

Laura Dollard just said no– to the mysterious Thomas Sullivan.

Peter Kleeman helped Dollard fight for her right to... gravel.

Sullivan's spokesperson Kim Atkins says the fear of large-scale development is unfounded. "Mr. Sullivan is remaining in the area himself and so is not fond of a lot of new rooftops in the area," she explains.

Sign of the times. For about two years, one man's vision has reshaped Blenheim Road.

Previous Hook stories have explored Sullivan's quest for asphalt as well as the name "Lower Sherwood."